Title IX:

Ensuring everyone’s rights to equal access to education

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What is Title IX?

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…” 20 U.S. Code §1681

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COMMON MISCONCEPTIONS

• If it didn’t happen recently, I don’t have to report it or investigate it.
• FALSE!
• If I complain about discrimination, there are no protections in place for me, and things are going to get worse.
• FALSE!
• Unless someone observed the discrimination or harassment I experienced, I cannot raise concerns about it or report it. (Be careful of the mindset: He said/she said)
• FALSE!
• Only the person who suffers discrimination can report it.
• FALSE!

TITLE IX

Unwelcome Conduct

1. Unwelcome conduct
2. Determined by a reasonable person
3. To be so severe and pervasive and objectively offensive
4. That it effectively denies a person equal access to an education program or activity
1. Note: Severe conduct that constitutes sexual assault, dating violence, domestic violence, or stalking is covered by the third prong (Clery Act & VAWA Conduct) of the definition of sexual harassment.
2. (Examples of denying of equal access: skipping class to avoid a harasser, student quits a team because of the coach but maintains other activities, changes in grades due to harassment)

TITLE IX

Sexual Harassment Defined

3 types of prohibited sex-based conduct:

• Quid Pro Quo (this for that)
• Unwelcome Conduct
• Clery Act and Violence Against Women Act (VAWA)

TITLE IX

Quid Pro Quo: “This for that”

Occurs when:

• a school employee
• conditions access to educational benefits
• on unwelcome sexual conduct

Note: This provision only applies to employee conduct.

(Ex. A teacher tells a student that the student will get an A on the final exam if the student sends the teacher nude photos).

TITLE IX

“On the Basis of Sex”

Now includes:

• Sexual Orientation
• Gender Identity

TITLE IX:�Clery Act & VAWA Components

The Clery Act- Federal Law requiring colleges and universities to disclose information about crime on and around campuses. Does not apply to K-12.

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Violence Against Women Act (VAWA) Federal law, enacted in 1994, administered by the U.S. D.O.J.

The following offenses, as defined in Clery and VAWA, are now specifically included as forms of sexual harassment

• Sexual Assault
• Dating Violence
• Domestic Violence
• Stalking

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When Must Schools Respond to Sexual Harassment Allegations?

• School MUST respond when it has actual knowledge of sexual harassment that occurred/is occurring in the school’s education program or activity.

• Education program or activity includes “locations, events, or circumstances which the school exercised substantial control over both the respondent and the context in which sexual harassment occurs.”
• Currently, only if it happens in the US

• Actual knowledge means a mandated reporter has notice of “sexual harassment or allegations of sexual harassment.”
• In the K-12 context, all employees are mandated reporters.

Reporting Sexual Harassment: Who? How? and When?

• May be made by anyone, not just the alleged victim or a mandated reporter
• Can be made by phone, mail, email, letter, “Let’s Talk”, or by any means that result in the Title IX Coordinator receiving the report
• Can be made at any time, including non-business hours
• May or may not be identified as a TIX case from the report, but it is best to report it and discuss it

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Kathleen Mclamb, JCPS Title IX & Auxiliary Administrator

Simpson Building

P.O. Box 1336

Smithfield, NC 27577

(919) 934-6031 ext. 8048 (919) 989-1095 fax (919) 901-3137 cell

kathleenmclamb@johnston.k12.nc.us

titleixcoordinator@johnston.k12.nc.us

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REPORTS OF SEXUAL HARASSMENT

© POYNER SPRUILL LLP

What constitutes

“Deliberate Indifference”?

If a school has actual knowledge of sexual harassment allegations but does not take appropriate action based on the known circumstances, that school is showing deliberate indifference.

Examples:

• not following through with a TIX report because of who someone is and s/he wouldn’t have meant that by his/her actions
• giving discipline to a respondent/alleged offender without thoroughly investigating the allegations
• a student continues sexual harassment behaviors without enacting TIX processes

© POYNER SPRUILL LLP

SUPPORTIVE MEASURES

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EXAMPLES OF SUPPORTIVE MEASURES

• Counseling
• Extensions of deadlines or other course-related adjustments
• Modifications of work or class schedules
• Security and monitoring of certain areas of campus
• Other similar measures
• Note: A supportive measure that completely removes a Respondent from an activity (except for “emergency removals” for students and “administrative leave” for employees) would likely be considered punitive.

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© POYNER SPRUILL LLP

How to Avoid Deliberate Indifference?

“When in doubt, report it out!”

• Schools must offer support to the alleged victim (complainant), regardless of whether they file a formal complaint.
• Schools must explain the process of filing a formal complaint to the complainant.
• Schools must follow an established grievance process before taking any disciplinary action against the person accused of Title IX violations (respondent).
• Schools must not restrict rights afforded by the U.S. Constitution when complying with Title IX.
• Schools are required to investigate any sexual harassment allegation in a formal complaint.
• Schools should conduct an investigation over the wishes of the complainant if circumstances warrant.
• Schools can address allegations under the school’s code of conduct if the allegations do not fall under Title IX.

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RECORD KEEPING

Maintain for seven years every report and formal complaint of sexual harassment.  Records to be maintained include:  

• Investigative records;
• Disciplinary sanctions;
• Remedies; 
• Appeals; 
• Actions taken; and 
• Supportive measures.

If complainant is not provided supportive measures, then the reasons why must be documented.

Document the basis for the school system's conclusion that its response was not deliberately indifferent.

Document that it has taken measures designed to restore or preserve equal access to the education program or activity.

A record of all materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must also be maintained and published on the website.

© POYNER SPRUILL LLP

TITLE VII BASICS:�PROHIBITION AGAINST RETALIATION

• To establish retaliation in violation of Title VII, a plaintiff must show:
• That she engaged in protected activity;
• That the employer took adverse employment action against her; and
• There was a causal link between the two events.

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Responding to Sexual Misconduct

That is Not Title IX Sexual Harassment

How to respond:

Title IX Best Practices:

• When in doubt, report it out! Call Kathleen McLamb prior to administering any discipline. Leave a message, text, and/or email, and I will return your call. Let’s discuss next steps to prevent back steps. (See examples of Elementary and Secondary Incident Reports)
• Document everything! Have students complete Incident Reports with all required information. This report demonstrates due process and assists in your investigation of who knew what, when, and how they knew it. (See example of documentation sheets)
• Review expectations often! When meeting with staff and students, repeat expectations for professionalism, boundaries, and respect. Document when you have these trainings and reminders. You may be asked about them one day. (Ex. from one of our school principals: “No fussing. No cussing. No touching.” Romance/Finance Speech, “Hands-Off” Policy)

Give it a guess… What Would You Do? (WWYD)

• A male student hits a female student on her backside when she is getting off of the bus. The female student turns around, and the male student says, “My bad,” and laughs. The female tells the bus driver what happened, and she says she feels uncomfortable riding the bus. (Is this TIX? WWYD?)
• A high school female student alleges that another high school student sexually assaulted her at a house party of over the weekend. WWYD #1: The 2 students attend the same school. WWYD #2: The 2 students attend different schools. (Is this TIX? WWYD?)

Give it a guess… What Would You Do? (WWYD)

• A homeroom teacher overhears two students talking about a band teacher who makes them feel uncomfortable by how he looks at them and other students. The prior weekend there was a band competition and the students mention that he made comments about how great they looked in their costumes. Unbeknownst to the students that the teacher heard them, the two students ask to stay in her class during Enhancements to assist her with setting up the class for science experiments. (Is this TIX? WWYD?)
• A fifth grade student sends sexually explicit messages and names with pictures to a group of girls in the class who she doesn’t like. The girls begin to argue with one another on the playground at recess. The teacher refers all of the students to the office for disruption. (Is this TIX? WWYD?)